CANADIAN PACIFIC RAILWAY COMPANY Vs. LEONARD LOCKHART

JUDGEMENT

(1.) This appeal concerns solely the responsibility of the appellant for injuries received by the infant respondent owing to the negligent driving of a motor car owned and driven by one Stinson, employed by the appellant as a carpenter and general handy-man. The action, which was directed against Stinsor. and the appellant was tried before Rose CJ and a jury in January 1939. The jury found that the accident was caused by Stinson'a negligence and assessed the damages at $ 10,000,00 to the respondent and $ 500 to his father. No question was left to the jury as to the liability of the appellant, and the learned Judge directed judgment to be entered against Stinson, and reserved judgment as to the appellant's liability; on 12 July 1939, the learned Judge dismissed the action as against the appellant, holding that the driving of the motor car was not in the course or within the scope of Stinson's employment by the appellant. An appeal by the respondent was dismissed by the Court of Appeal for Ontario on 15 December 1939, by a majority of four to one. On a further appeal by the respondent, the Supreme Court of Canada, on 4 April 1941, unanimously allowed the appeal, and directed judgment to be entered for the respondent against the appellant for the amount awarded by the jury. Hence the present appeal by the appellant. Their Lordships are content to take the material facts, which are not in dispute, from the judgment of Rose CJ HC, who tried the case, as follows : "The defendant Stinson had been for many years in the defendant company's service. It is in the course of his employment to make repairs of many kinds to the company's property, movable and immovable. His immediate superior is the foreman of the bridge and building department at the company's works at West Toronto, and his own headquarters are at those works, but his duties take him from time to time to other premises of the company in and out of Toronto, all of which can be reached by the company's lines of rails.

(2.) At West Toronto, Stinson had made a key for use in a lock in the station at North Toronto. He had made it from a pattern, and he was authorised or instructed by his foreman to go to North Toronto and try it in the lock. He is paid by the hour, and would have been paid for the time occupied in the journey. The company keeps at West Toronto vehicles of three types for the use of the employees in connection with their work; a speeder', a 'track-motor', and a 'hand-car', all of which run on the company' rails; and, sometimes, when it is more convenient, man proceeding from one part of Toronto to another is instructed or permitted to travel by tram-car and is furnished with tickets. On this occasion nothing was said as to how Stinson was to get to North Toronto; but the track- motor and the speeder were in the shop, available for use, and the foreman assumed that the track-motor would be used. Stinson, however, had a motor car of his own nearby, and, without communicating his intention to anyone, he decided to use it. He did use it, and on his way to North Toronto he injured the infant plaintiff.

(3.) The company, by its divisional superintendent, and over his signature, had issued two notices concerning the use by its employees of privately owned motor cars in connection with the company's business. The first dated 28 December 1937, was as follows: "ALL CONCERNED : The use by employees of their own cars in connection with the company's business has been forcibly brought to our attention by possible heavy claims against the company in recent accidents, and after a check up of the situation it develops that a large number of such employees do not carry public liability or property damage insurance. As a continuance of this practice is likely to seriously involve the company, privately owned automobiles are not to be used in connection with the company's business unless the owner carries insurance against public liability and property damage risks. Please be governed accordingly", and the second, dated 21 March 1938 (i.e., just less than four months before the accident which gave rise to this action), was as follows: "ALL CONCERNED : Referring to my circular letter of 28 December 1937, regarding the use of privately owned automobiles not covered by insurance in the execution of company's business. Since then, several instances have come to notice where employees had used unprotected automobiles contrary to the instructions. In one case, a telegraph messenger undertook to use an automobile while his bicycle was undergoing repairs, and had the misfortune to strike and injure a prominent citizen. As a result, a heavy claim has been preferred against the company on the grounds that the messenger was transacting company's business at the time.